Burnett &c. v. Harwell &c. 3 Leigh 89. But it is no valid objection to the relator that he was in the first instance only an equitable assignee, if as such assignee he has in his cwn name brought suit and obtained a decree for the debt. Com. v. Barstow &c. 3 B. Monroe 293. The rule is, that so soon as execution on the judgment or decree against the personal representative is duly returned, an action against the obligors in his bond may be brought by the person entitled to the action of devastavit; and the assignee last mentioned is that person. In Dykes & Co. v. Woodhouse's adm'r, 3 Rand. 287, the court of appeals held that a judgment obtained by an executor or administrator, was not, of itself, an administration; that the commission of the unadministered estate of the first decedent, entitled the administrator de bonis non to receive the money for which the judgment was rendered; and to obtain the money, he might, in his own name, either sue a scire facias on the judgment, or bring an action of debt thereon. This decision governed the case of Allen & others v. Cunningham &c. 3 Leigh 395. In that case, it appeared by the declaration, that judgment was obtained by an administrator in his representative character, against an administratrix in her representative character; and the action was at the relation of the administrator de bonis non of the first intestate, upon the bond given by the administratrix for the performance of her duties. The defendants demurred to the declaration, insisting that the statute gave the action to the executor or administrator of the person recovering the judgment, that is to say, to the representative of the first administrator, and not to the administrator de bonis non of the first intestate. But the court of appeals overruled the demurrer; being of opinion that the action was properly brought at the relation of the administrator de bonis non. Accord. Turnbull ex'or v. Claiborne, 3 Leigh 392. TITLE II. RIGHT OF ACTION ON BILLS OF EXCHANGE, PROMIS SORY NOTES AND OTHER UNSEALED INSTRUMENTS. CHAP. 13. How far a party may be bound by writing his name on a blank paper. 14. How the validity of an unsealed instrument is affected by a material alteration. 15. Whether a consideration is required to support a written contract when not under seal. 16. What is a bill of exchange; nature of the drawer's con tract. 17. By whom, to whom and when bill should be presented for acceptance; if acceptance be refused, what are the duties, rights and liabilities of the parties. 18. Who may be liable as acceptor of a bill; and how the acceptance may be made. 19. Acceptance admits hand-writing of drawer and right of payee to endorse. Under what circumstances acceptor is precluded from denying payee's endorsement. 20. Effect of the statute of Ann on a promissory note. What is a negotiable instrument on which an action may be brought under that, or the Virginian, statute. 21. Where and when a bill or note must be presented for pay- 22. Of notice of dishonour; how given and proved; how proof on it. 25. Rights of the holder of a bill or negotiable note; and liabilities of the prior parties. 26. Of instruments not negotiable; statutes of Virginia and other states give action thereon in name of obligee or payee or of his assignee. 27. In Virginia and other states, right of action of assignee against assignor of an instrument not negotiable. 28. Action on a promise to guaranty. 29. Action on a promise to indemnify. CHAPTER XIII. HOW FAR A PARTY MAY BE BOUND BY WRITING HIS NAME ON A BLANK PAPER. 1. Rule of Russell v. Langstaffe. Though an instrument made in the form of a promissory note, be, at the time a man endorses it, blank as to the sum, date and time of payment, the blanks may afterwards be filled up, and the endorser charged according to the tenour of the instrument as so filled up. Russell v. Langstaffe, 2 Dougl. 514. There is a like rule as to a bill of exchange. It may be proved that the acceptance was written before the bill was drawn, yet the holder may proceed as if the bill had been drawn and then accepted. Molloy v. Delves, 7 Bingh. 428, 20 Eng. Com. Law Rep. 190. These rules have been often acted on in the United States. Putnam &c. v. Sullivan &c. 4 Mass. 45; Robertson &c. v. Williams &c. 5 Munf. 381; Douglass v. Scott &c. 8 Leigh 43; Orrick v. Colston, 7 Grat. 194. If a man endorse a paper with intent that a promissory note should be written on the other side, and that he should be considered as the endorser of that note-that being the shape he intended to give the transaction-he will be concluded from objecting that it was not filled up when he endorsed it. Violett v. Patton, 5 Cranch 151. It is immaterial that the person taking the instrument on the credit of a particular signature knew that the signature was obtained first and the instrument afterwards written. Coalter, J. in Bennett v. Maule's adm'x, Gilm. 313; Brooke, J. in Taylor adm'r of Holloway v. Bruce, Gilm. 81. There is no distinction in principle, when the bill has passed into the hands of third persons, between holding the acceptor liable to a given amount, when the bill is afterwards drawn in the name of the party who has obtained the acceptance, and when it is drawn by a stranger who becomes the drawer at the instance of the party to whom the acceptance is given. It does not, in such case, lie in the mouth of the acceptor to say that the drawing or endorsing the bill is irregular. Shultz v. Astley, 2 Bingh. N. C. 544; 29 Eng. Com. Law Rep. 418. 2. Instrument not to be drawn or delivered contrary to directions of party who puts his name to it. In the case of a blank paper signed and delivered and an implied authority thereby given to fill it up, the insertion of another co-promisor may not be inconsistent with such authority. Yet when the authority is to draw an instrument in a particular way, it should not be drawn in a different way. Crotty v. Hodges, 4 Man. & Gr. 561; 43 Eng. Com. Law Rep. 292. The instrument is not to be made complete contrary to the directions of the person who puts his name to it. A paper to which the defendant's name was attached, was delivered to his brother, with power to make it a complete instrument on one condition only-that one R. would be a joint surety with him. "This," said Parke, B., "is an instance of a limited authority, where in case of a refusal by R. to join, there is a countermand. R. refused to join, and consequently the defendant's brother had no authority to make use of the instrument. A party who takes such an incomplete instrument cannot recover upon it unless the person from whom he receives it had a real authority to deal with it." Awde v. Dixon, 6 W. H. & G. 869. Here the note had a blank for the name of the payee, and not until the time of taking it, was that blank filled with the plaintiff's name. "It is," said Parke, B., "a fallacy to say that the plaintiff is a bona fide holder for value; he has taken a piece of blank paper, not a promissory note. He could only take it as a note under the authority of the defendant's brother; and as he had no authority, consequently the instrument is void as against the defendant." S. C. 5 Eng. Law & Eq. 512. It was like the case of a defendant who was told that his mother was to join; the obtaining her signature was a condition which not being carried into execution, it was considered, justified the defendant in withdrawing. Leaf &c. v. Gibbs, 4 C. & P. 466, 19 Eng. Com. Law Rep. 475. 3. Bona fide holder not affected by private instructions of which he has no notice. That the paper is filled up contrary to the directions and intention of the party who put his name to it, is generally not a valid objection as against a bona fide holder. The party putting his name to the blank cannot because of any private instructions to fill it up for a particular purpose or in a particular way, shelter himself from liability to a bona fide holder for value, having no notice of such instructions. Pollock, C. B., in Barker &c. v. Steine, 9 W. H. & G. 684; 25 Eng. Law & Eq. 502; Robertson &c. v. Williams &c. 5 Munf. 381. The issuing a bill with a blank for the name of the payee is an authority to a bona fide holder to fill it; and he may fill it, though the bill has been accepted. Cruchley v. Clarance, 2 M. & S. 90; Crutchley v. Mann, 1 Marsh. 29; 5 Taunt. 529; 1 Eng. Com. Law Rep. 79; Atwood &c. v. Griffin &c. 2 C. & P. 368; 12 Eng. Com. Law Rep. 176. In each of these cases (as well as in Hunt v. Adams, 6 Mass. 519, where a blank was filled with the word year) the instrument was filled up according to the intent apparent on its face. 4. How far there is limit as to the amount for which, or the time within which, the paper is issued. It Notwithstanding Lord Mansfield's expression in Russell v. Langstaffe, that the endorsement "is a letter of credit for an indefinite sum," there is in England a limit as to the sum, resulting from the stamp laws. The rule there is, that if a person puts his name to a blank form of a bill, either as drawer or acceptor, it may be filled up with any amount the stamp will bear. 9 W. H. & G. 684. He impliedly authorizes the filling of the blank up to that amount. 6 W. H. & G. 869. Whether there is not some reasonable limitation in point of time for filling up the blank was a question in Mulhall v. Neville, 8 W. H. & G. 391; 20 Eng. Law & Eq. 308. has been contended that the authority is an authority to fill up within a reasonable time, and that if the authority be not pursued in that respect, the party giving it is not liable. This is decided not to be the case with reference to the rights of a bona fide holder for value without notice. Secret stipulations which, as between the person by whom and the person to whom the authority is given, may be binding, will not avail as against such bona fide holder. Temple v. Pallen, 8 W. H. & G. 389; 20 Eng. Law & Eq. 306; Montague v. Perkins, 22 Eng. Law & Eq. 516. Though after the name of a firm is written on a blank one of the partners dies, the instrument may still be filled up so as to bind the survivors. Usher &c. v. Dawney &c. 4 Camp. 97. 5. In the United States, rule of Russell v. Langstaffe extended to unsealed instruments generally. In the United States, the rule of Russell v. Langstaffe has been extended to unsealed instruments generally. Herrick v. |